Thurrock Council (202227472)

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REPORT

COMPLAINT 202227472

Thurrock Council

20 September 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of the resident’s reports of damp and mould, and related asbestos works.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident has used a representative in her communication with the landlord and the Ombudsman, hereby referred to as ‘the representative’.
The resident has been a secure tenant of the landlord since 28 October 2013. The property is a ground floor flat which the resident occupies with her husband. Both residents have severe mental health issues for which they were previously hospitalised for 10 and 25 years respectively. They also have physical vulnerabilities including chronic obstructive pulmonary disease (COPD), visual impairment, limited mobility and asthma.
On 3 and 4 November 2021 the landlord’s contractor attended the property and completed mould treatment. Records show that the resident had been experiencing a damp and mould issue for some time prior to this. The landlord also identified a possible leak coming from the upstairs balcony.
On 14 February 2022 the landlord raised a works order for asbestos testing. The asbestos survey was completed in March 2022 and identified asbestos in 3 rooms which scored ‘very low’ and therefore needed to be managed rather than removed. There were some areas of the property that were not tested due to access restrictions such as the position of the fridge and items in cupboards.
On 13 May 2022 the representative made an MP enquiry stating that the resident had not yet received the asbestos survey results. She was also still concerned about mould and said she had had to throw away damaged clothes and furniture. The landlord responded and apologised for the delay which it said was partly due to the asbestos, which it would need to have removed before it could complete the damp and mould works.
On 10 October 2022 the representative made another MP enquiry stating that there had been no progress with the asbestos or the mould works. The landlord’s response accepted that there had been delays in arranging the works and apologised. It confirmed that it had arranged to complete asbestos works over 5 consecutive days. The contractor attended on 7 November 2022 but was unable to commence works as the resident had not moved her furniture as was required. The representative contacted the landlord and said that the resident had not been asked to move the furniture and would have been unable to do so without support. They also said the contractor had arranged to return on subsequent days but had not done so.
The representative made another MP enquiry on 1 December 2022 as the works had still not been done. The landlord made an appointment for 3 January 2023 but said the resident was not home when they attended. The resident disputes this. On 4 January 2023 the landlord told the representative that it had logged the MP enquiry as a stage 2 complaint. Contractors attended on the same day and commenced asbestos works. They reported that they attended the following day and the resident was not home again, which she also disputes. The asbestos works were fully completed on 16 January 2023.
The landlord issued a stage 2 response on 18 January 2023 which said that it was satisfied it had acted appropriately and been proactive and flexible in arranging the works. The landlord completed the mould works on 24 January 2023.
On 5 April 2023 the representative contacted the landlord reporting that mould had been ongoing for almost the entire tenure and that the landlord had not made any attempt to find the underlying cause. The representative requested:
1. A full survey and testing by an independent contractor.
2. For the landlord to resolve any leaks.
3. For the landlord to replace or replaster the affected walls and doors.
4. For the landlord to replace damaged belongings.
5. For the landlord to compensate the resident for items that she had already disposed of.
The representative escalated the resident’s complaint to the Ombudsman on 3 October 2023.

Assessment and findings

Scope of investigation

The representative has reported to this Service that the resident had damp and mould in her property for almost her entire tenancy, and that it had been treated several times before. As this issue was not brought to the landlord’s attention at an earlier time, however, the Ombudsman is unable to consider the condition of the resident’s property and the action taken by the landlord going back as far as the start of the tenancy.
As per paragraph 42a of the Scheme, the Ombudsman may not consider complaints that were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 12 months of the matters arising. This is as resident’s are expected to bring any matters of concern to the landlord’s attention relatively soon after experiencing the issue, so that the landlord can promptly take steps to put things right.
As time passes, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account and the availability/reliability of evidence, it would be unreasonable for the Ombudsman to seek to investigate events more than 12 months prior to the resident’s stage one complaint.
The Ombudsman considers the residents stage 1 complaint to be the MP enquiry she made on 13 May 2022. Therefore, this investigation has only considered events from 13 May 2021 onwards.

The landlord’s handling of the resident’s reports of damp and mould, and related asbestos works

The landlord’s tenancy agreement with the resident confirms that it is responsible for the repair and maintenance of the structure and exterior of the property. As such, the landlord has an obligation to carry out any repairs to the structure of the property which give rise to damp and the formation of mould. The landlord also has a duty under the Housing Act 2004 to assess a property for potential hazards to a resident’s health. One such hazard is the risk to health from damp and mould. Therefore, it has a responsibility to carry out any work to the structure of the property and mitigate any issues which contribute to damp and mould.
The landlord’s contractor attended to complete mould treatment on 3 and 4 November 2021. During the visit they identified a possible leak coming from the upstairs balcony however the landlord failed to arrange an appointment to fix it. This meant the leak was not resolved within an appropriate timescale.
On 14 February 2022 the landlord raised a works order for asbestos testing. The evidence the landlord provided the Service did not indicate what prompted this but the representative told us that they had asked the landlord to arrange it. The asbestos survey was completed in March 2022 and identified asbestos in 3 rooms which scored ‘very low’. The recommendation was to label with warning signs where appropriate and undertake routine re-inspections for damage or deterioration.
The landlord had a duty under the Control of Asbestos Regulations 2012 to manage asbestos in the property and the associated guidance states that “you (the duty holder) must identify all asbestos-containing materials present in the building that could be damaged or disturbed during normal occupancy. This should include routine and foreseeable maintenance and cleaning activities. It is therefore very important that these areas are identified”. However, the survey report shows that several areas were not tested due to access restrictions. Some of these were restricted in such a way that they would have been unlikely to be disturbed by normal occupancy, for instance behind wall panels and boxing and beneath flooring, however 3 cupboards were also not tested. The reasons given for restricted access were stored items and the positioning of the fridge. While these are not areas that landlords are required to test under the Regulations, the landlord may wish to consider doing so to prevent future issues.
On 13 May 2022 the representative made an MP enquiry reporting that the resident was still experiencing mould and had had to throw away clothes and furniture. She reiterated that the resident and her husband were both vulnerable and said the mould was having a severe and detrimental effect on both their physical and mental health. The resident had also not received the asbestos survey results.
The landlord responded to the MP enquiry on 27 May 2022. The response said that the landlord had not referred the outstanding works identified in November 2021 to its contractor and apologised for this. It also said that asbestos was present in the property but did not present a health and safety concern, however it would contact the resident to make an appointment to remove it so that it could complete further mould works. The landlord advised that the quality assurance team would monitor the case and ensure all works were completed, which raised the resident’s expectations. The landlord could have prevented the situation from escalating into further complaints and an Ombudsman investigation had they kept this promise. The failure to properly monitor the case further damaged the resident’s relationship with the landlord.
The landlord’s repairs policy states that it will respond to routine repairs within 20 working days. The landlord attended on 6 June 2022 and fixed a leak within the water supply. Despite this, the landlords written correspondence dated 27 May 2022 confirmed there was an unreasonable delay following the results of the asbestos test in March 2022 which was unreasonable.
On 10 October 2022 the representative made another MP enquiry which said that there had been no further progress with either the asbestos or the mould works, and that the landlord had not attempted to contact her or the resident. The landlord responded on 2 November 2022 and said that it raised an asbestos works order on 26 May 2022, and it had asked the contractor to arrange the appointment. It said that the contractor said in an email on 5 July 2022 that they had tried but been unable to contact the representative on several occasions and so they had cancelled the works pending further contact. The landlord was unable to provide the call logs that evidence this to the Ombudsman. The landlord noted that the contractor keeps their own call logs however we would expect the landlord to be able to access these and provide them when requested by the Ombudsman.
The landlord accepted that the contractor should not have cancelled the works without further discussion with the landlord and apologised on their behalf. The Ombudsman’s October 2021 Spotlight report on damp and mould states that wherever possible, landlords should avoid leaving external contractors to arrange appointments with residents directly so they are fully aware of all issues. They should also ensure they maintain contact with the resident throughout the repair process instead of leaving the resident to liaise directly with the contractor. Leaving the contractor to arrange the appointment with the resident with no follow-up from the landlord was inappropriate. The Ombudsman also expects landlords and contractors to maintain a robust record of contacts, repairs, and services provided. This is because clear, accurate, and easily accessible records provide an audit trail and enhance landlords’ ability to identify and respond to problems when they arise. The landlord should review its processes and staff training to ensure communication is direct with the resident.
The landlord made appointments to remove the asbestos on consecutive days between 7 and 11 November 2022, after which it would arrange the mould works. While the landlord accepted there had been failures it did not offer the resident any redress. The resident had been living with recurring damp and mould since before a survey that the landlord had carried out in February 2021, and had already experienced delays in getting the previous mould treatment completed. It would have been appropriate and reasonable for the landlord to offer some compensation for distress and inconvenience.
The landlord attended on 7 November 2022 but told the resident they could not begin the works as she had not moved her furniture out of the way. The appointment confirmation letter did not mention that the resident needed to move furniture, and therefore gave the resident no opportunity to arrange support with this. The landlord’s repairs policy states that “contractors have a duty to check flags on the council’s computer systems which highlight the vulnerability of customers before making a visit, to ensure adequate support is in place. If there is any doubt with regards to vulnerability further checks must be made with the council.” While this places the duty on the contractor, the contractor acts as an agent of the landlord and as such, the landlord failed to adhere to its own repairs policy. It is likely that the resident’s health conditions met the legal definition of a disability, given in the Equality Act 2010. As a public body, the landlord had a duty under this Act to make reasonable adjustments in the way it provided its service to the resident, which it failed to do in this case. It would have been appropriate for the landlord to contact the resident ahead of the appointment to offer support with moving the furniture. The failure to do this, or to even make her aware she would need to arrange this herself, meant the works were further delayed.
The landlord contacted the resident on 8 November 2022 to discuss moving the furniture. The resident told the landlord that the contractor who had attended the previous day had told her he was leaving to make a phone call then did not return at all. She told the landlord she was unable to move the furniture herself and the landlord said it would ask the contractor if covering it with a dust sheet would suffice.
On 14 November 2022 the representative emailed the landlord and said the resident had agreed with the contractor to move certain furniture items and leave others in place. They said that since then the resident had received a text each day saying that the contractor would attend the following day, but no one had attended. The contractor told the representative that they had tried to attend on 5 November 2022 and called twice but got no answer. The resident disputes this and the contractor did not leave a voicemail or an access card. The Ombudsman expects landlords to leave a voicemail and card at a resident’s property when they are not home to evidence that they attended and give the resident information about how to reschedule. The landlord did not provide any evidence that it had done this.
The representative said that due to the resident’s vulnerabilities all contact should go through them, but that the landlord did not seem to have recorded this on its systems. They also reported a leak from an upstairs balcony into the resident’s bedroom. The landlord responded the same day and said it would be in touch again soon with a full response. The representative chased a response on 17 November 2022 but the landlord did not respond. Clear and effective communication on a landlord’s part is an essential aspect of all aspects of its overall service delivery. The landlord’s failure to maintain good communication further delayed the works and caused further distress and inconvenience to the resident.
The representative made another MP enquiry on 1 December 2022 which raised the same concerns about the outstanding damp, mould and asbestos works. They also emailed the landlord on the same day with the same concerns. Repair logs show the contractor attended on 3 January 2023 but the resident was not home. Again, there is no record of the contractor leaving a no access card.
On 4 January 2023 the landlord acknowledged the MP enquiry and said that it had logged it as a stage 2 complaint. The decision to do this is discussed further in the next section of this report. The contractor attended the property the same day and commenced works. Repair logs show the contractor attended the next day to continue but the resident was not home. Again, there is no record of the contractor leaving a voicemail or no access card and the resident disputes that they attended or tried to contact her or her representative.
On 5 January 2023 the representative contacted the landlord and asked to be the first point of contact as the resident gets distressed when lots of different people contact her directly. The representative said she had asked the landlord to do this many times before but it continued to contact the resident directly. There is no evidence available to substantiate this, however the evidence shows the representative had been acting on the resident’s behalf since at least January 2021 so it is reasonable to conclude that this was the case. It is concerning that despite the resident’s significant vulnerabilities and the landlord’s assertion that previous phone calls had gone unanswered, it had not recorded and acted on this request. This was another failure to make reasonable adjustments for the resident. The landlord should ensure that the representative is recorded as the resident’s contact on its and its contractor’s systems where it has obtained the resident’s consent.
The representative’s email also raised the leak from the upstairs balcony and said there had been puddles of water on boxing in the property. She said again that the resident had had to throw away furniture and clothes and that she had had to cut sections of carpet away to clean water from underneath it. She requested that the landlord arrange a full damp and mould survey and testing by an independent contractor, that they remove and replace doors and wood that had been damaged, carry out works to leaky guttering and replace or compensate the resident for belongings that had been damaged or disposed of. The landlord responded to this email on 11 January 2023. The response referenced works that had been done to repair a toilet leak but did not address the leak from the balcony that the representative had raised. It also failed to address the representative’s assertion that the resident’s belongings had been damaged. The Ombudsman would expect the landlord to give the resident details of how she could make an insurance claim should she wish to do so, and to offer appropriate support, which may have included submitting the claim to the insurer on her behalf.
The landlord did offer to make regular welfare calls to the resident, which is a service it offers to vulnerable tenants. While it was good that the landlord offered this, it raises the question of why it had not offered before and it also failed to address the issue with the resident being contacted directly rather than through her representative. There was also no response to the representative’s request for a full survey and compensation. Overall, the response seemed dismissive.
On 13 January 2023 the contractor attended and recommenced the asbestos works. Works continued and were completed on 16 January 2023.
The landlord issued its stage 2 response on 18 January 2023. It said that the delays had been caused by:
1. The resident’s furniture not being moved and that it had agreed to help if required.
2. The resident not being home when contractors attended.
The stage 2 response concluded that the landlord was satisfied it had acted appropriately and been proactive and flexible in arranging the repairs, noting that it had contacted the resident in December 2022 to reschedule. The Ombudsman disagrees with that conclusion. The landlord knew the resident was vulnerable and would struggle to move furniture. It asserted that it had offered to help her move it, although the evidence only shows the discussion about using dust sheets. However, even if the landlord did offer to help, it did not follow up with her when she did not contact them to rearrange the works. The landlord’s response also makes it seem as though the landlord proactively contacted the resident to rearrange works in December 2022 when the evidence indicates it only did so when the representative raised an MP enquiry.
The representative told the Ombudsman that the resident and her husband rarely leave the house and when they are home, they always answer the door even if they are not expecting anyone as not doing so would cause them anxiety. There is not enough evidence for the Ombudsman to determine whether the contractors did in fact attend on the days they said the residents were not home, however if they did, the failure to leave voicemails, no access cards or to follow up with the residents when they could not gain access was not appropriate. The Spotlight report says that landlords must ensure that they do not close jobs before they are fully resolved and that new appointments are booked quickly. In instances where landlords are not able to access the property, they should have processes in place to follow up with the resident to rearrange the appointment promptly.
The landlord completed the mould treatment works on 24 January 2023. While events prior to May 2021 do not form part of the Ombudsman’s investigation, it is important to note that the evidence made available to us shows the landlord had treated mould at least twice before in 2017 and 2019. Just 6 months after the November 2021 works, the resident reported serious mould again. While it was reasonable that the landlord initially treated mould, it should have recognised that the problem kept returning and considered alternative options, particularly after the November 2021 works as the representative reported mould again so soon. A review of this may have driven the landlord to put in a place a lasting and effective fix.
A damp and mould survey the landlord carried out earlier in 2021 concluded that the likely causes were poor ventilation and heating imbalance and the landlord gave the resident advice on housekeeping practices to help. Occupancy factors do not mean that the landlord has no responsibility, and landlords should recognise that some homes were not designed with modern living in mind. When the problem kept returning it would have been appropriate for the landlord to consider whether there were any reasonable steps it could take to improve ventilation and the balance of heating in the property as the advice it gave the resident was clearly not working. It could also have considered whether the resident fully understood the advice and whether she needed any support implementing it. As stated in the Spotlight report, there is a need to change the thought process from ‘how can the lifestyle be adapted to suit the property’ to ‘how can the property be adapted to suit the lifestyle’.
The Ombudsman’s research for the Spotlight report found that 23% of damp and mould was caused by leaks. The resident reported leaks at least twice after a leak was fixed in June 2022 but the evidence is not clear on when these were resolved. The representative told us that the balcony leak has now been fixed. However, it is concerning that the landlord did not treat the leaks with the appropriate urgency and the delays in resolving them may have exacerbated the damp and mould conditions in the property. The landlord should arrange a full inspection to identify the source of the problem and complete any associated works.
The Spotlight report recommends that landlords schedule follow-up visits at set periods, for at least a year after works are completed, to satisfy themselves that the problem has not returned. The representative told the Service that since the treatment in January 2023, the mould has returned and that the landlord has not followed up with them since. To help manage the problem they have been taking their washing to the launderette which costs them £8 each time and the property smells strongly of damp, which is embarrassing for the residents. They also said that the extractor fan was fitted incorrectly and it only comes on when the bathroom light is on. The representative told us that the residents have again given up on reporting the issues as the works do not resolve it permanently and arranging the works causes them further distress. The landlord should ensure the extractor fan is repaired or replaced.
Considering the history of recurring damp and mould, the previous delays and the vulnerability of the residents, the failure to follow up on the issue is inappropriate. The landlord has since implemented a damp and mould policy which states that residents are sent a customer satisfaction survey after all repairs which gives them the opportunity to raise further issues, however it would be more appropriate for the landlord to be proactive in arranging post-works inspections for serious cases or where the resident is vulnerable. The Ombudsman recommends the landlord review its damp and mould policy to include this.
The landlord did not act appropriately in relation to the asbestos, damp and mould works and this amounts to severe maladministration. The delays and failure to address the underlying cause of mould have caused the resident extreme distress. Living in damp, mouldy conditions can cause distress to anyone but the resident has suffered more than the average person due to her mental and physical health conditions. The resident struggles when her routine is disrupted, such as when works are being carried out, and this was further exacerbated when planned works did not go ahead. She also suffers from COPD and asthma which she reports have been worsened by her living conditions. The Ombudsman is unable to determine whether a resident’s health has been affected, but damp and mould is known to exacerbate respiratory conditions.
The Ombudsman’s remedies guidance recommends compensation of between £600 and £1,000 for severe maladministration that had a significant impact on the resident or where the redress needed to put things right is substantial. Considering the impact this has had on the resident and that it has still not been rectified the landlord should pay the resident £1,000 compensation.

Complaint handling

The Ombudsman’s Complaint Handling Code (the Code) defines a complaint as an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation. Crucially, it says that a resident does not have to use the word complaint in order for it to be treated as such. The resident’s MP made enquiries to the landlord on 13 May 2022 and 10 October 2022. Both enquiries clearly expressed dissatisfaction with the landlord’s service on behalf of the resident, yet these were not logged as complaints.
The MP enquiry on 13 May 2022 stated that there was extensive mould in the property and that the landlord was not doing anything to resolve the issue. It said that the mould was having a severe detrimental effect on the resident and her husband and that they had had to throw away clothes and furniture. It also said that they had not received the asbestos survey results. The landlord responded on 27 May 2022, apologising for the delay and advising that works it would now arrange the works. However, it did not address that the mould had reportedly damaged the resident’s belongings and failed to offer insurance details, which was inappropriate.
The MP enquiry on 10 October 2022 also expressed dissatisfaction that works had still not been completed. The landlord responded to this enquiry on 2 November 2022 and apologised again for the delays and lack of communication.
While it is positive that the landlord responded to both enquiries within a reasonable time, offered an explanation and apologised, the failure to deal with them under its complaints procedure was inappropriate and not in accordance with the Code. It meant that the resident did not have the reassurance and benefit of response timescales, the opportunity to receive a formal remedy to put things right and an awareness of how to escalate her complaint should she wish to do so.
The resident made a further MP enquiry on 1 December 2022, complaining that works had still not been completed. The landlord logged this enquiry as a stage 2 complaint. Internal emails show that their reasoning for doing so was that there had been 2 previous MP enquiries about the same issues, the residents were vulnerable, and the works were still outstanding. The Code, as well as the landlord’s complaints policy, states that the landlord should operate a 2-stage complaints procedure. While dealing with the latest MP enquiry as a complaint was the correct approach, escalating the matter to stage 2 was not. By missing stage 1 and only issuing a stage 2 response, it removed a valuable step and deprived the resident of the right to respond, resulting effectively in a 1-stage complaints procedure. This was not appropriate and was a failure to apply the principles set out in the Code.
The landlord acknowledged the stage 2 complaint on 4 January 2023, 21 working days after it received it. While neither the Code nor the landlord’s complaints policy gives a prescribed timescale to acknowledge a stage 2 complaint, the Ombudsman considers 21 days to be unreasonable, particularly considering the delays there had already been to the works being completed. The Code and the landlord’s complaints policy state that the landlord should respond to stage 2 complaints within 20 working days. The landlord issued the stage 2 response on 18 January 2023 – 31 working days after the landlord had considered the resident’s complaint formally. It is also important to highlight that this formal response came 8 months after the resident first raised her complaint. This caused the resident significant delays in being able to bring her
complaint to the Service for an independent investigation.
The failure to treat the resident’s expressions of dissatisfaction as complaints, the failure to offer a 2-stage complaints procedure and the delays in responding to the stage 2 complaint amount to maladministration. The landlord should pay the resident £250 compensation in recognition of this and review its staff training to ensure complaints are handled in line with the Code.

Determination

In accordance with paragraph 52 of the Scheme:
1. There was severe maladministration in respect of the landlord’s handling of the resident’s reports of damp and mould, and related asbestos works.
2. There was maladministration in respect of the landlord’s complaint handling.

Orders

The landlord is ordered to:
1. Pay the resident £1,250 compensation within 4 weeks, broken down as follows:
  1. £1,000 for distress and inconvenience caused by the delays to asbestos, damp, and mould repairs.
  2. £250 for the complaint handling.
2. Complete a full damp and mould inspection within 4 weeks to identify the source of the problem.
3. Complete any resulting works within 15 working days of the inspection (in line with its current damp and mould policy).
4. Repair or replace the resident’s extractor fan so that it works correctly.
5. Ensure the representative is clearly recorded as the resident’s contact on its own and its contractor’s systems, should the resident still wish to be represented.
6. Support the resident to make an insurance claim for damaged belongings, should she wish to do so.

The landlord should provide the Ombudsman with evidence that it has taken the above actions within 4 weeks of receiving this report.

Recommendations

The landlord is recommended to:
1. Test the areas that were missed during the previous survey for asbestos.
2. Review its procedures and staff training to ensure it communicates directly with residents about repairs rather than via its contractors.
3. Review its damp and mould policy to include post-works inspections for serious cases or where the resident is vulnerable.
4. Review its staff training in relation to complaint handling and the Ombudsman’s Complaint Handling Code.